Lai v Moraitis Fresh Produce (Vic) Pty Ltd

[2000] VSC 181

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4999 of 1990

HILDA LORRAINE LAI	Plaintiff
v.
MORAITIS FRESH PRODUCE (VIC.) PTY. LTD.	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 MAY 2000
DATE OF JUDGMENT:	2 MAY 2000
CASE MAY BE CITED AS:	LAI v. MORAITES FRESH PRODUCE
MEDIUM NEUTRAL CITATION:	[2000] VSC 181

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CATCHWORDS:      Interlocutory injunction – Damages adequate remedy – Impecuniosity of plaintiff – Undertaking as to damages of little value – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Pirrie	Irlicht & Broberg
For the Defendant	Mr. S. Marantelli	Wisewoulds

HIS HONOUR:

1. The application for interlocutory injunctive relief presently before me relates to Store No. 260 ""B1" (to which I shall hereafter refer as "Store 260") at the Melbourne Wholesale Fruit and Vegetable Market.

1. The plaintiff, Hilda Lorraine Lai, through two companies named Evergreen Pty Ltd and L & L Produce Pty Ltd, had previously occupied other stores in the market, however those businesses failed and both companies were eventually wound up, Evergreen by order of the Federal Court on 28 October 1997 and L & L Produce by order of this court on 25 February 1998.  However, in September of 1994 the plaintiff had also taken a lease of Store 260.  That lease expired on 31 December 1997.  Thereafter it would appear that the plaintiff remained in occupation of the store as a licensee from month to month.

1. In her statement of claim the plaintiff refers to two letters dated 23 March 1998 and 5 May 1998 respectively that she received from the Authority's solicitors.  In those letters the Authority's solicitors advised the plaintiff, inter alia: 

"Our client has instructed us that it is not prepared to grant a new five year Lease to you for two key reasons: 

The Board of the Authority has resolved not to grant trading space to parties who have failed to meet their financial obligations to creditors involved in Market activities.  As a director of L & L Produce Pty Ltd, a business which owes substantial amounts to other operators both within and outside the Market, the Board would not be prepared to grant a five year Lease to you. 

We are instructed that the payment history of

H L Lai with regard to the Authority has been poor in that 10 Notices to Rectify Default have been issued and 3 cheques have been dishonoured in the past eight months.  However, we are instructed to advise you that the Authority is prepared to grant you a new Lease until 30 September 1998 to preserve your financial interests in the modules for a reasonable period of time, namely six months. 

We are instructed that if during this time you should introduce an assignee that is acceptable to the Authority for the above stores, a new five year Lease will be offered to that assignee." 

1. The plaintiff now alleges that in June of 1998 she entered into an arrangement with the defendants whereby she assigned Store 260 to the first-named defendant on the basis that the first-named defendant would take a five year lease of the store from the Authority but would hold the lease as trustee for the plaintiff.  For some time previously the defendants had conducted business from other stores at the market.  The plaintiff alleges that it was further agreed that the first-named defendant would employ her as a purchasing officer.

1. If that was the arrangement entered into by the plaintiff and the defendants, it was clearly designed to deceive the Authority.

1. At all events, the first-named defendant took a five year lease of the store from the Authority and the plaintiff duly commenced employment with it as a purchasing officer.  However, on 18 February 1999 the defendants terminated the plaintiff's employment.  Since that time the defendants, or more particularly the first-named defendant, has continued to conduct its business from Store 260.

1. On 8 April 1999 the plaintiff filed a writ in the court naming as first-named defendant Moraitis Fresh Produce (Victoria) Pty Ltd and Nicholas Moraitis as second-named defendant, by which she seeks inter alia a declaration that the defendants and each of them hold the lease which they have obtained from the Melbourne Market Authority in respect of Store 260 "B1", 542 Footscray Road, Footscray on trust for the plaintiff and specific performance of the trust agreement.

1. It is conceded by counsel for the defendants that the defendants are now intending to sell the businesses conducted by them at the market to another company and to assign their leases, including the first-named defendant's lease of Store 260, to that company.  The plaintiff now seeks an injunction restraining them from doing so pending the trial and determination of the proceeding.

1. That application is opposed by the defendants.  At this stage the defendants are not seeking to rely on any answering material in opposition to the plaintiff's application.

1. Having considered the matter over the luncheon adjournment, I do not consider that it is appropriate to grant interlocutory relief in the proceeding.  Whilst on the face of the material presently before the court it can be said that there is a serious issue to be tried in the proceeding, in my opinion to do so would be to become party to the plaintiff's attempts to deceive the Authority.  Secondly, in my opinion if the plaintiff does ultimately succeed in the proceeding, she would be adequately compensated by an appropriate award of damages.

1. Finally, having regard to the plaintiff's financial history, as spelt out in her own statement of claim, I have little confidence that any undertaking as to damages given by her to the court would be of value.  The application is dismissed with costs to be taxed and paid by the plaintiff.

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